by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
Scenario: A state agency drafts rules in good faith to meet a legislated duty. Turns out, however, the rules they come up with don’t work as expected. The change gives an unintended benefit to some of the regulated parties, however. They’ll fight changing things back.
The end result is an ineffective rule that can’t be taken off the books because of the politics surrounding its unintended consequences.
To counter that, agencies need a way to revisit a rule that take the politics of doing it off the table. Sunset with periodic review does that well.
Here’s a way to help with the periodic review: stated objectives and outcome measures. As discussed in my report on Reining in Regulation:
No matter how seemingly well considered it is, any new rule poses a real risk of unintended, unforeseen negative consequences. For this reason, agencies should be mandated to include stated objectives and outcome measures for regulations, so that when the time for review arrives, the regulations can be held accountable to them.
Furthermore, each rule creates its own winners and losers, and the winners of any regulation would be able to point to positive effects among themselves, regardless of whether the rule actually addresses its original purposes. It is therefore also important to be able to test a rule according to its foundational purposes, not any unintended, extraneous, isolated positive effects it has.
This idea is a modification of something state leaders used to do with the budget. They included outcome measures for the different funds, which enabled people to see how effective the programs actually were. I used it, for example, in my report years ago on state job-training programs (see footnote 11).
The practice of including outcome measures for budget funds ceased, if memory serves, sometime in the early 21st century. I believe it would be good to start doing that again as well.